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Judge Calabresi Asks, 'What About the Establishment Clause?'

The Hon. Guido Calabresi, a scholar-jurist who sits as a senior judge on the United States Court of Appeals for the Second Circuit, recently put challenging issues like “the right to discriminate” and public prayer in context of the Establishment Clause at a law school lecture. The clause’s so-called “10 tortured words” state, “Congress shall make no law respecting an establishment of religion.”

In his address, which was co-sponsored by the law school and the Danforth Center on Religion & Politics, Calabresi drew on his experience as a judge, an academic, and a person of faith to discuss the past, present, and future of religious freedom, a topic that “is at the core of a free society.” He discussed the relationship between the Establishment Clause and the right to religious freedom and its free exercise.

This relationship can only be understood, he explained in his talk, in light of the long history in America of the Establishment Clause’s intentions not being applied to religious freedom at the state, municipal, neighborhood, and individual levels.

The problem goes back to the country’s founding. Calling the First Amendment “an extraordinary declaration of equality,” Calabresi explained, “The First Amendment said, in effect, 'There are no ‘we’ religions, there are no ‘they’ religions, all are the same, and there will be no affirmative action because there are no outsiders who need to be brought in. We are all the same, and Congress keep out!'”

In contrast, Calabresi paraphrased the Fourteenth Amendment as saying, “There are people whom we haven’t treated as people, and not only are they people, but they are equal, and we will treat them as equal, but Congress shall have the power to enforce equality.”

The issues America faces today reveal the legacy of these different approaches to religious freedom. For example, Arizona’s “religious freedom” bill, which the governor of that state vetoed, would have allowed business owners to deny service to gay or lesbian people because of religious principles. What if that law had allowed religious business owners to deny service to African Americans? “We would say that’s unconstitutional because of what the Fourteenth Amendment says,” Calabresi stressed. “But more importantly, we would not let that be a part of public life because of how that group of people [African Americans] were treated here.”

Similarly, Calabresi recalled that at the time of Brown v. Board of Education (1954), then judicial clerk William Rehnquist wrote a memo to Justice Robert Jackson urging him not to support the end of segregation. “Rehnquist wanted to establish a principle that individuals at least had a constitutional right to discriminate because of the right of free association,” Calabresi noted. “He never got there, but an analogous notion has been re-born in terms of religions having a right to discriminate because of their beliefs, and that is much harder to deal with because the Constitution does say ‘free exercise.’”

Calabresi concluded that, ultimately, these difficult issues come down to three questions: How crucial is it to the identity of a church, or a church-sponsored organization, to have a practice that degrades others? Do those others belong to groups that have been discriminated against in the past? Finally, how much does it degrade them?

“In deciding these issues, we cannot be too mechanical,” he said. “We have to look both to the category of the organization, how much it means to them to have this faith, how negative it is to whom, and how much it says ‘we’ are different, and ‘you’ are in some sense inferior.

“I tend myself to go very far in limiting things that discriminate, but I think that if we do this and do it in the context of a country that has gone from ‘no establishment’ at the national level to one where people are worried at the individual level, we can begin to understand and value those who take different positions, which is the essence of democracy,” he concluded.